41 F. 33 -

41 F1d 33

class="ad-unit">

Case Text

·UItlI'1'EPIlTATE8'

"i. LEIGH·..

aehs of animalll;and that they are specially benefidal in casell of d:tspepsia, diarrhea, and all stomach difficulties. arising from indigestion; that they are not sold alone as a drink or beverage, but are taken as a tonic medicine .mi:xed with water, and sometimes with wine or spirits. I am therefore of opinion that these bitters Come within the description ora proprietary preparation, and should have been admitted at a duty of 50 per cent. ad valorem under clause 99, as insisted by plaintiffs. I do not intend to be understood as holding that all goods protected by a trade-mark come, for that reason alone, within the description of "pro. prietary preparations," ·but only that these goods, by reason of the care bestowed upon their preparation, the directions for their use, and the special Use forwhich they are intended,.are brought within the m.ercial meaning of those words.

UNITED STATES

v.

LEIGH

et al.

(Circuit Court, D. Ma/l8achU8ett8.

CuSTOMS DUTIES-CLASSIFICA.TION-CARD CLOTHING.

January 9, 1890.)

Card clotIVng whif;lq ie attached by means of rivets.to iron flats, for the purpose of being attached to machines for carding cotton, does not come within the provisions of tariff act of 1883, (22 St. U. S. 511. Schedule N,) relating to the duty on ca,rd. clothing, is assessable qnder 22 St. u. S. 501, Sched mil "C, relating to the duty upon composed wholly or in part of iron, steel, etc.

·At LaW.' Actions to reoover customs duties upon importation of card clothing. Thomas H. Talbot, Asst. U. S. Atty. Joseph H. Robinson, fot defendants. t!:
COLT, J. The importation in these suits consisted of card clothing attached by means of rivets to "iron flats," which are pieces of meta, about 41 inches long, with a rib caston their back, showing in section a shape like this: 1. These iron flats, when covered with card clothing, are attached to machines for carding cotton, but not necessarily to any particular C8l'd.ing machine which may be imported with them. When imported, thecllrd clothing was riveted to the, Iron flats, but it was de. . spribed in the invoices as "tops," which is another name for card clothing. It was separately bought in the foreign market, and was separately valued in the invoices as "tops," and it, was packt0 by itself in cases separately marked and numbered. Upon this article the collector. assessed a duty of 45 per centum ad valorem, under Schedule C of the act of March 3, (22 St. 501,) as a manufacture composed wholly or in part of iron, steel, etc. The importer contends that the duty should have been assessed under Schedule N (If the same act, (22 St, 5U,) which provides as follows: "Card clothing, twenty-five cents per square foot; when manufactured from tempered steel wire; forty-five cents per square foot." v.41F.no.1-3

Witlithe' defenda;nts'po$ition is this:that'the article: 'not Citrdcl6thing, but it was pieces of card clothing firmly secu:red·to ironflatsbyrneansof rivets; in other words, it was card clothing: made, or manufactured into something else, of which card clothing forined.one oithe elements. The treasury decisions cited by the defendants do, no'!:, it seems to'me, apply to this case. They would be more applicable if'the cardiolbthinghadbeenseparated, when imported, from the:flatS'f but, it havink'beeu firmly united to the flats in the manner descriOedititis no longer the card clothing of oommerce, but it has bec6mea.ihewarticle of manufacture.n seems totmethatthia Cl:lse comes within Itbetrectmt decision of this court'in BirtweU v. SaltonstaU, 39 Fed. the authorlHes there oited, and Ido not think it necessary to again go over the same ground. Let judgmentibe entered for the, plaintiffs for amount claimed. Judgment for plaintiffs.

'{(74.rcuit coUrt,

!':..' ,.

,f.;

N.D.'New ,', ,"

I.'

,.

December 80,1889.) ,

'"',, ' ,,' , Where and lold for yeara M IlLigb,tntng BayKnives," and the word has been registered M a trade-mark by the manufacturers of these knivelll they may enjoin the sale of "Lightning :pattern :u :Elay"JU)ivel.1'. thewqrd Illightn>lUg"not being merely descriptive of the quanty or oharacteristics of the knives. 2. B A M E . , . """, '.. Letters patent No. 112,400, iSllued to.George F.Weymouth Maroh7, 1871, having expired, the owners of suoh patent have no eltolUllive til use the :words mouth's Patent "as a trade-mark, because it was the descriptive name by which the hay-knives became known to the public.

'The facts :ih this 'case, as appears by 'the"agreed state-. t!l\8.fpAl'ties;,: as:lfoUows: ..IDram Holt, ?f .in ,tIle state began the'ma.nufaetuI'e of hay-kmvesm the early paTt 1871, dartMn oithe United StaMs granted to Geotige: \F\J rw,eymotitb\ of 'Dre13deri, Me., dated March 7,' 18;71, and the said Hiram Holt being the owner of said letters in th'e mbnthof May, 1872, after he had become, the owner oltsrQid :patent;and'began said Hiram Holt devised, as' I1anie mahufabturedby him tinder the said letters pS,tenl, tlle;wotd"lightning," aDd',he-' began to use inn his said' bnsinesS' 'On the 21'st day of May, 1872.1ri May, 1879, he assbciated Holt, as a co-pal'tller,and thereafter transacted: the' same business under the style of "Hiram Holt & I" until 9th day
,WALLAt!a!:j'Jr. ,;